bring this Claim alleging that as a result of the negligence and medical
malpractice of the Defendant, State of New York, more particularly, the
employees of State University of New York Health Science Center at Brooklyn -
University Hospital (hereinafter "Downstate"), Claimant suffered serious,
severe, and permanent nerve damage from spinal injection trauma secondary to
multiple failed attempts at administration of epidural
anaesthesia.

This Decision results from a unified trial of the above-captioned matter, which
occurred in New York City on September 25 through September 28, 2000. The
relevant facts as found by this Court after that trial are as follows.

On October 8, 1991, Claimant, then 38 years old, was admitted to Downstate by
Nicola Mertsaris, M.D., an attending physician specializing in obstetrics and
gynecology, for delivery of a child by C-Section. Both Claimant and Dr.
Mertsaris testified that in preparation for that C-Section delivery a "tall
black man"[2]

purportedly a resident at Downstate and believed by Claimant to be "Dr. Brady"
(but whom the Court refers to hereinafter as "Doctor X"), entered Claimant's
room to administer a spinal epidural anesthesia. Dr. Mertsaris could not
identify Doctor X. Both Dr. Mertsaris and Claimant testified that Doctor X made
three attempts to administer the spinal anesthesia all of which were
unsuccessful. Claimant testified she felt a "tearing, ripping pain" radiating
down her left leg with the last attempt. Doctor X immediately withdrew the
spinal catheter and left the room. Anesthesia was then successfully
administered to Claimant by Brian McHugh, M.D., a resident Anesthesiologist at
Downstate, who also testified on behalf of Claimant. While Dr. McHugh could not
identify Doctor X, he testified that failure to note the three failed epidural
attempts in Claimant's medical chart was contrary to hospital policy and a
departure from good and common medical practice. Claimant then underwent the
planned C-Section without further incident.

After her post-delivery recovery from the anesthesia, Claimant complained of
severe headache, back pain, and numbness in her left leg from her hip to her
foot. This resulted in a loss of use of the lower portion of the left leg and
left foot drop or foot drag, with some residuals that Claimant alleges are
permanent in nature. Claimant remained hospitalized from October 8, 1991 until
November 14, 1991, undergoing a long and tedious recovery. After discharge she
was confined to a wheelchair for one year, subsequently followed by ambulation
with the assistance of a walker for

several months. To date, Claimant still walks with a cane. Claimant
received at home nursing care after discharge until August of 1994, and was
unable to work from October 8, 1991 until January 1, 1994. She underwent
extensive physical therapy and rehabilitation for a period of approximately 3
years. Claimant testified she suffered a great deal of pain and, she alleges,
her difficulty ambulating remains to date.

Claimant called as an expert witness, Aric Hausknecht, M.D., a board-certified
neurologist and one of her treating physicians. It was Dr. Hausknecht's
credible opinion that Claimant suffers from adhesive arachnoiditis resulting in
polyradiculopathy leading to partial loss of feeling and use of the lower left
extremity. Dr. Hausknecht testified that this arachnoiditis resulted from
spinal injection trauma, secondary to multiple failed attempts at administration
of an epidural anesthesia. In essence, Dr. Hausknecht opined with a reasonable
degree of medical certainty that the third unsuccessful lumbar epidural attempt
was far too lateral to the spine, partially as a result of Claimant's scoliosis
or curvature of the spine. This resulted in Doctor X nicking a blood vessel
which caused blood to pour into a nerve sleeve. Dr. Hausknecht explained that
when blood entered the nerve sleeve in the area of L3, 4, and 5, it resulted in
inflamation to the nerve root and sleeve which over time created scar tissue
resulting in Claimant's adhesive arachnoiditis. It was Dr. Hausknecht's
ultimate opinion that the injury sustained by Claimant resulted from a departure
of the standard of due care and medical practice in the community. Dr.
Hausknecht testified that Doctor X was clearly not trained or qualified to
perform this procedure unsupervised on a patient with scoliosis. He opined that
after the first or at least the second botched attempt, Doctor X should have
either requested direct supervision from a more experienced physician trained in
this procedure, or done the procedure by way of a fluoroscopy which would create
an x-ray image of the spinal area at the time the catheter was being inserted.
Either way, this particular type of problem could, and should, have been
avoided. Moreover, Dr. Hausknecht stated Claimant's complaint of the shooting
and burning pain on Doctor X's third attempt is also consistent with direct
nerve contact which often results in simultaneous bleeding in and around the
nerve root. It was the doctor's opinion that this is the most feared end result
of a failed or botched lumbar epidural and that this result, under these
circumstances, was clearly a departure from the standards of due care and duty
owed to the Claimant. Additionally, the absence of notes in the Claimant's
medical chart detailing the problems in administering Claimant's anesthesia is
also, in and of itself, a departure from the standards of care owed to a
patient, particularly when a procedure such as this fails.

On February 22, 2000, Dr. Hausknecht ordered an MRI of the lower portion of
Claimant's spinal cord at Lumbar 3, 4 and 5. An examination of those images
(Claimant's Exhibits 7A-1 through A-3) demonstrate a narrowing and constricting
of the nerve roots of the lower portion of Claimant's spinal cord. This, Dr.
Hausknecht concludes, is consistent with, and confirms the presence of, adhesive
arachnoiditis.

Claimant also called a board-certified neurologist, Dr. Morton Finkle, who
examined Mrs. Sharma on March 31, 1999. He testified to Claimant's loss of
sensation and touch from the left foot to the left knee. He also observed
marked muscular weakness resulting in drag or drop of the left foot. He
confirmed radiculopathy from L3, 4 and 5 of Claimant's spinal region secondary,
in his opinion, to spinal injection trauma caused by the failed epidural
attempts. It was Dr. Finkle's opinion that Claimant's loss of sensation and
weakness are permanent in nature.

The State called Isaac Azar, M.D., who was recognized by the Court as an expert
in the field of anesthesiology

. Dr. Azar testified that he has performed thousands of epidural procedures.
The witness described the risks associated with a lumbar epidural as: 1)
inserting the needle into the vein which would cause anaesthetic to reach the
circulatory system causing drowsiness and other side effects; or 2) the lumbar
epidural actually taps into the sub dura or dura leading to a loss of spinal
fluid resulting in severe headache; and 3) that a needle could touch a nerve
root leading to damage and various symptomology associated therewith. He
testified that the failure of Doctor X to document his three failed attempts
was, in and of itself, a violation of a standard of care or duty of care owed to
Mrs. Sharma. In fact, on cross-examination, Dr. Azar stated that the failed
attempts should have been charted because it is 1) extremely important to know
what had happened previously, 2) it would be important to know if there was in
fact any injury to the patient, and 3) in this case the follow-up
anaesthesiologist, Dr. McHugh, must know what treatment and course of action
should be followed as a result of the three prior failed attempts. In the
absence of such documentation, Dr. Azar acknowledged he cannot say that this
epidural procedure was properly performed. Most interesting, was the witness's
acknowledgment that once a patient feels a "jolt", the treating physician has
gone too far with the epidural; if you continue, "it's only a distance of
millimeters" before you can sever or damage a nerve.

The State also called Dr. Jerome Block who performed an independent medical
exam of Claimant on August 6, 1998, and reviewed her medical records. Dr. Block
testified that he found no organic cause for the weakness complained of by
Claimant. He found no defect of the nerves or muscles and felt that Claimant
was exaggerating, or subjectively manifesting or magnifying, her injuries. He
did, however, find a slight decrease of sensation in the pin test from the waist
down on the left side of the body. On cross-examination the doctor acknowledged
that there was some degree of recovery and normal power that the Claimant had
regained since the injury in 1991. Moreover, Claimant has demonstrated
continual improvement by graduating from a wheelchair, to a walker, and then a
quad cane. Dr. Block did not believe Claimant suffered from any organic
dysfunction of a permanent nature.

The Court also received, with the consent of the parties, a report of David
Dickoff, M.D., who performed an electromyogram (EMG)

on the Claimant. However, Dr. Dickoff failed to attach the underlying raw data
which he used to interpret and evaluate Claimant's EMG. Without the underlying
test data sheets and supporting documentation it was difficult for the
Claimant's experts, or the Court, to critically evaluate the reliability of the
information contained in Dr. Dickoff's written report. Suffice it to say Dr.
Dickoff's report as well as all of the Claimant's other medical experts, to this
Court's view, simply questions the degree and severity of the injury and the
associated permanence, if any, suffered by Claimant. However, absent an
accurate and complete hospital chart, they do not, and cannot, seriously
question Claimant's contentions as to what actually happened at the time the
epidural anesthesia was attempted by Doctor X on October 8, 1991.

I - Liability

Generally, in order to maintain an action for injuries sustained while under
the care and control of a medical practitioner, a party may proceed upon a
theory of simple negligence or upon the more particularized theory of medical
malpractice. (

Hale v State of New York, 53 AD2d 1025, lv denied 40 NY2d 804).
The theory of simple negligence is restricted to those cases where the alleged
negligent act is readily determinable by the trier of facts on common knowledge.
Here, Claimant's cause of action is better suited to the theory of medical
malpractice since it is the administration of epidural anesthesia that is in
issue, which clearly falls outside the scope of this Court's common knowledge,
and therefore requires expert testimony. (Twitchell v MacKay, 78 AD2d
125). In a medical malpractice claim, a claimant has the burden of proof to
establish a deviation or departure from accepted practice and that such
deviation was the proximate cause of the injury. (Nicolosi v Brookhaven Mem.
Hosp., 168 AD2d 488). More specifically, a claimant must show that the
medical care giver either did not possess or did not use reasonable care or best
judgment in applying the knowledge and skill ordinarily possessed by
practitioners in the field. (Pike v Honsinger, 155 NY 201; Jacques v
State of New York, 127 Misc 2d 769, 770-771). A claimant must then
establish that his/her injuries were proximately caused by the deviation from
those standards. In order to sustain this burden, a claimant must present
expert testimony which establishes the negligence and causation to a reasonable
degree of medical certainty. (Hale v State of New York, supra, 53
AD2d 1025, lv denied 40 NY2d 804). Once Claimant has presented that
proof then, if the Court finds the same to be credible, the Claimant has made
out a prima faciecase of medical malpractice. Moreover, once the
Claimant establishes a prima facie case of medical malpractice, then the burden
of persuasion and/or production of evidence shifts to the State to overcome the
Claimant's prima facie showing. (Brown v City of New York, 47 NY2d 927;
see also, Fisch on Evidence, § 1088, at 611 [3d Ed]).

Here, the Court finds that Claimant currently suffers from adhesive
arachnoiditis caused by spinal injection trauma, secondary to multiple failed
attempts at administering epidural anesthesia at Downstate on October 8, 1991.
The Court credited the testimony of the Claimant herself as to what she felt and
experienced on that date when Doctor X attempted on three occasions, without
success, to administer epidural anesthesia. The Court accepts the testimony of
Claimant's experts Dr. Finkle and Dr. Hausknecht, basically uncontroverted by
the State, that Claimant's injuries were caused as a direct result of the
departure from acceptable standards of medical care and practice in the manner
and effect in which Doctor X administered the epidural anesthesia which was a
breach of duty owed to the Claimant. More specifically, Claimant's experts
satisfied the Court that Doctor X either did not possess or use reasonable care
or best judgment in the performance of Claimant's epidural anesthesia. The
Court is satisfied from the testimony that Claimant's injuries were, in fact,
proximately caused by a deviation from the standard of care owed the Claimant by
Doctor X and the staff at Downstate Medical Center. As such, the Court is
satisfied from the credible evidence elicited at trial, expert and otherwise,
that Claimant established a prima facie case of medical malpractice.

Since Claimant has made a prima facie showing of medical malpractice, the
burden of production and/or persuasion then shifts to the State to overcome
Claimant's proof. In this case the State has failed to rise to the challenge.
The State through its doctors and experts offered no testimony to contradict
Claimant's prima facie case, specifically since they failed to produce Doctor X
or anyone else with actual knowledge as to what procedure was actually performed
on Claimant or the records relative thereto. While the State's experts, Dr.
Azar and Dr. Block, attempt to show that the injury suffered by Claimant could
be an inherent and attendant risk involved in the procedure administered to
Claimant, absent Doctor X and the corresponding hospital records and medical
chart, their conclusions are sheer speculation. For in the first instance, the
State cannot establish that Doctor X was in fact even a physician or other
person possessing sufficient medical training and/or skill to be administering
this type of anesthesia in an unsupervised setting. Unless and until the State
can establish the same with competent, admissible proof, the Court is not
willing to find the State's expert testimony on the risks associated with this
procedure sufficient, or credible enough, to overcome the Claimant's prima facie
showing of medical malpractice. Since the State was unable to counter
Claimant's proof on causation, it can only question, as it does here, the degree
of injury and appropriate amount of damage actually suffered by Claimant.

Consequently, this Court finds that Claimant sustained her burden of
establishing that the State deviated from accepted standards of care and
practice in administering her epidural anesthesia and that such deviation
proximately caused her injuries.

II - DamagesA. Pain and Suffering

The term "pain and suffering" has previously been utilized to encompass all
items of general, non-economic damages. (

McDougald v Garber, 73 NY2d 246). An award for pain and suffering should
include compensation to an injured person for physical and emotional
consequences of the injury. In determining the amount to be awarded the
Claimant for these physical, emotional, and other "non-economic" damages, the
Court may properly consider the effect these injuries have on the Claimant's
capacity to lead a normal life. The Court finds that the Claimant is entitled
to a judgment against the State on her claim for pain and suffering, both past
and future.

1. Past Pain and Suffering

The Court is satisfied from the testimony and proof elicited at
trial that the Claimant endured a fair degree of past pain and suffering. First
and foremost, the Claimant described a very painful and traumatic procedure
which occurred on October 8, 1991 as a result of Doctor X's inability to
properly administer an epidural anesthetic. Claimant further testified that
when the anesthesia wore off, sensation came back in her right leg, but not in
her left leg. The day immediately following the procedure she had a severe
headache and back pain, no ability to control her left leg, and no feeling in
the left leg. Her left leg remained totally dead with no muscle control and
totally paralyzed for at least three to four days
thereafter.

As a result of this injury, Claimant remain hospitalized from October 8, 1991
to November 14, 1991. She was subjected to a battery of tests including EEGs,
MRIs, and x-rays, and underwent physical therapy at least three times per week
during this period for 45 minutes per session.

Upon her discharge Claimant still had no feeling in her left leg from the knee
down to the foot and was confined to a wheelchair. Since she could not ambulate
on her own, the hospital threatened not to release her baby to her since they
were concerned about her ability to care for the newborn in light of her
physical limitations. As a result, Claimant received home care treatment in
varying amounts, from twelve hours per day, seven days a week, to four hours per
day, five days per week for the next two and one-half years. Home care assisted
her with showering, dressing, and all mobility inasmuch as the Claimant remained
totally helpless. She was confined either to a wheelchair or a walker, the toes
on her left foot were curled and she was unable to provide any care for her
child or husband. In fact, during this period of time Claimant had to be
carried up and down three flights of stairs to and from her apartment any time
it was necessary for her to leave her residence. This continued until
approximately August of 1994 when she began going to rehabilitation three times
a week. From 1994 until March of 1999, the Claimant wore a leg brace on the
left leg and was not able to return to any type of meaningful employment until
she began working at home as a legal transcriptionist. Claimant also testified
how these limitations adversely impacted her ability to care for and bond with
her infant child.

As of the date of trial, Claimant still suffers physical limitations which
impact her daily life. Her ability to climb stairs or steps is impacted and she
can walk only slowly. Claimant cannot run or even walk fast, and she still has
numbness from the knee down in her left leg. She needs elevators when
available, and needs assistance at home, from her husband and others, when
reaching or bending. She cannot grocery shop or do the laundry. She still has
to use her quad cane since she is fearful of walking and falling without that
assistance whether she is in or outside of the home. Socially she describes the
situation as embarrassing, and her unsteadiness creates a hurdle which she must
overcome on public transportation; buses, trains or any type of mass transit.
She also suffers from a loss of balance as a result of her injury.

In light of the foregoing, the Court awards Claimant $150,000.00 for past pain
and suffering.

2. Future Pain and Suffering

The Court was impressed with the testimony of both Claimant's expert
physicians, Dr. Hausknecht and Dr. Finkle. Both physicians opined that due to
the length of time the Claimant has suffered from weakness of the lower left
extremity, numbness and some foot drop, they anticipate her condition to be
permanent in nature. Moreover, Claimant herself testified that she still
suffers physical limitations in terms of stair climbing, walks slowly, and some
numbness from the knee down in the left leg. Furthermore, she described the
impact that she suffers on a daily basis in terms of needing assistance at home
with certain matters and her need to use a quad cane whenever she leaves the
home. This is problematic when she travels outside the home. She testified
that it is embarrassing and it is difficult on mass transportation and that she
suffers from a loss of balance. Moreover, in viewing State's Exhibits E and F
(surveillance tapes of Claimant), the Court does find that Claimant still walks
with some limp and needs the assistance of her cane. However, while the Court
believes that Claimant has substantially improved from her condition of October
8, 1991, the State's surveillance tapes satisfy the Court that there is still
some permanent residual loss of use of Claimant's left leg to such a degree that
supports Claimant's contentions of permanent impact on her daily activities, and
life in general.

Therefore, the Court awards the Claimant $100,000.00 for future pain and
suffering and the permanent/residual partial loss of use of the lower portion of
her left leg and foot for the remaining

As a general principle a claimant is entitled to be reimbursed for
any lost earnings caused by the defendant's negligence from the date of the
accident to the date of trial. Additionally, the Court may make an award for
loss of future earnings if the Claimant has suffered a reduction in her capacity
to earn money in the future as a result of the same negligent act. (36 NY Jur
2d, §§ 69 & 198).

1. Past Lost Earnings

As a general principle, proof of past lost earnings must be established with
reasonable certainty focusing on the Claimant's earning capacity before and
after the accident. (

Clanton v Agoglitta, 206 AD2d 497, 499). It is the Claimant's burden to
establish his or her own loss of "actual" past earnings by submitting
appropriate proof and documentation. In calculating lost earnings, the Court
may consider the value of fringe benefits associated with Claimant's position,
assuming there is evidence presented as to the nature and value of such
benefits. (Toscarelli v Purdy, 217 AD2d 815,
818-819).

In the instant case, Claimant testified that she had been employed by Congress
Talcott Corporation at the time of her admission to the hospital on October 8,
1991, on a full-time basis at $185.00 per week with individual health insurance
benefits. As a result of the injuries she sustained, Claimant lost her job at
Congress Talcott. It appears from the record that she was unable to return to
work until January of 1994, when she began home employment as a legal
transcriptionist earning $4,000 to $5,000 per year, without any fringe or
insurance benefits. However, the Court believes by January 1994, Claimant was
physically capable of employment equivalent to her prior position with Congress
Talcott.

Based upon Claimant's uncontroverted testimony, the Court finds that she was
unemployed from October 8, 1991 until January 1, 1994. During that period of
time her weekly salary of $185.00, plus the value of fringe benefits at
$15.59 was lost by the Claimant. Consequently, Claimant suffered a loss of
income and benefits during a period of 2 years and 3 months for a total of
$23,469.03.

2. Loss of Future Earnings

Loss of future earnings must be established with reasonable certainty focusing,
in part, on Claimant's earning capacity both before and after the accident.
(

Clanton v Agoglitta, supra, 206 AD2d, at 499). However, an award for
loss of future earnings may not be based upon speculation. In the instant case,
Claimant testified that she was able to return to work in January of 1994. The
Court is satisfied that any physical limitation under which Claimant now labors,
should not, and in fact does not, impact her ability to work at a job equal or
superior to her last position at Congress Talcott. Consequently, the Court is
not inclined to make any award for loss of future earnings.

C. Derivative Claim of Jagat Sharma

Mr. Sharma did not testify at trial, although the Claim does plead a derivative
claim on his behalf. During Mrs. Sharma's own testimony there were only vague
references to the impact of her injuries on her husband. When one spouse
suffers a severe injury, it may be reasonably inferred that the other spouse was
deprived of spousal services and is entitled to compensation. (

Torro v Altman, 97 AD2d 819, lv denied, 62 NY2d 603). However,
this Court is not inclined to award even nominal damages when, as here, there is
a total lack of proof. (Rusinko v Plechavicius, 57 AD2d 553).

Conclusion

The Court finds that the credible evidence established that Claimant, Bhagmatty
Sharma, is entitled to an award for damages as follows:

Past Pain and Suffering: $150,000.00

Future Pain and Suffering: $100,000.00

Past Lost Income: $ 23,469.03

Future Lost Income: $0

Derivative Claim of Jagat Sharma: $0

Total: $273,469.03

Interest on the award is to run from the date hereof at the statutory rate of
9% which the Court finds presumptively reasonable.

Any motions upon which the Court previously reserved at trial, or which were
not previously determined, are hereby denied.

LET JUDGMENT BE ENTERED ACCORDINGLY.

March 28,
2001Binghamton, New York

HON. FERRIS D. LEBOUSJudge of the Court
of Claims

[1]The claim of Jagat Sharma is derivative in
nature and, accordingly, any reference to the term "Claimant" will refer solely
to Bhagmatty Sharma.

[2] Unless otherwise indicated, all quotations
are from the Court's trial notes.

[3]Claimant was 46 years of age at the time of
trial with a remaining life expectancy of 35.4 years. (1B PJI3d Appendix
A).